Burn the Constitution

The pitfalls of constitutionalism.

The worldwide revolutionary turmoil of the years just after World War I witnessed the single biggest leap in labor’s long forward march.

At least, it did in most places.

But while general strikes were panicking European elites into making sweeping concessions to their working classes, here in America the Wilson Administration was swiftly re-privatizing the economy and dismantling the progressive wartime labor codes — prompting Felix Frankfurter to render a despairing judgment: the United States, he wrote, appeared to be “the most reactionary country in the world.” When the unimpeded rule of the plutocrats was confirmed by Calvin Coolidge’s election six years later, William Howard Taft concluded with satisfaction that Frankfurter had been right: “This country is no country for radicalism. I think it is really the most conservative country in the world.” But why was that so? There were many theories. The patrician editors of the New York Times had given this matter some thought, and on Constitution Day, 1921, they provided one plausible explanation: “If it is true, as there is much evidence to prove, that Americans are showing themselves the most conservative nation in a turbulent world, the largest cause of it lies in our Federal Constitution.” The Constitution, the editors explained, “makes the American people secure in their individual rights as citizens when these are imperiled by passing gusts of sentiment.”

These dubious “gusts of sentiment,” in the lingo of American constitution-speak, are precisely what other societies call “the democratic will.” It stands to reason that a document drafted by a coterie of gilded gentry, openly contemptuous of “democracy” and panicked by what they saw as the mob rule of the 1780s, would seek to constrict popular sovereignty to the point of strangulation. Thus, brilliantly and subtly, the system they built rendered it virtually impossible for the electorate to obtain a concerted change in national policy by a collective act of political will. The Senate is an undemocratic monstrosity in which 84 percent of the population can be outvoted by the 16 percent living in the smallest states. The passage of legislation requires the simultaneous assent of three separate entities — the presidency, House, and Senate — that voters are purposely denied the opportunity to choose at one time, with two-thirds of the Senate membership left in place after each election. The illogical electoral college gears the whole combat of presidential elections around a few, almost randomly determined, swing states that happen to contain evenly balanced numbers of Democrats and Republicans. And the entire system is frozen in amber by an amendment process of almost comical complexity. Whereas France can change its constitution anytime with a three-fifths vote of its Congress and Britain could recently mandate a referendum on instant runoff voting by a simple parliamentary majority, an amendment to the U.S. Constitution requires the consent of no less than thirty-nine different legislatures comprising roughly seventy-eight separately elected chambers.

There was a brief moment in U.S. history when these truths were acknowledged by the Left. During the Progressive Era, the Socialist Party branded the Constitution a menace to democratic government and a number of progressive intellectuals, including Charles A. Beard, Vernon L. Parrington, Carl Becker, and J. Allen Smith, lucidly recognized the document’s reactionary constraints and sometimes called for their overthrow. Beard established a Committee on the Federal Constitution which advocated subordinating the Constitution to popular control, declaring that “the people of the United States have not control over their fundamental law at the present time, save in a minor degree. The consequence is, our institutions do not reflect the popular will, but in reality other forces over which we have only a measure of control.” The Sixteenth and Seventeenth Amendments, authorizing a federal income tax and direct election of Senators, were the most enduring (if inadequate) fruits of this period of ferment.

But unfortunately it was the counterattack that proved far more lasting.

During the 1920s and 1930s, as historian Michael Kammen has demonstrated, constitutionalism “assumed a more central role in American culture than it ever had before,” thanks in large part to “the efflorescence of intensely partisan organizations that promoted patriotic constitutionalism as an antidote to two dreaded nemeses, governmental centralization and socialism.” The National Association for Constitutional Government, the American Legion, the Constitutional League, the National Security League, the Sentinels of the Republic, all came together to “pledge themselves to guard the Constitution and wage war on socialism.” A national Constitution Day was instituted. Local school boards were pressed to further glorify the sacred parchment. All of this, I would argue, amounted to America’s version of the anti-democratic nationalist populism that was spreading in Europe in the same years. Today’s Tea Party, with its mania for constitutionalism, is the direct heir to this venerable conservative tradition that embraces the Founding Fathers’ masterwork as a bulwark against democratic adventurism — hence the Congressional Republicans’ ritual Constitution-reading, and their new rule requiring that specific constitutional authority be cited for each bill. Like Action Française or the anti-republican peasant leagues of Weimar Germany, the Tea Party’s patriotic constitutionalism originated in the 1920s as a conservative reaction against the working class movements that had surged forward to remake the state into the democratic instrument of popular aspirations.

It’s easy to make fun of the Right’s bizarro Constitution fetish, especially in its current Glenn Beck-ified form. Beck’s late guru, the Bircher and Mormon extremist W. Cleon Skousen, is now the main source of the Tea Partiers’ constitutional wisdom; his books, once out of print and gathering dust, have become posthumous bestsellers and required reading at Tea Party training courses. A true fanatic and weirdo, Skousen believed the Founding Fathers were inspired by the example of the ancient Anglo-Saxons, who in turn were inspired by the Biblical Israelites. All adhered to the divinely sanctioned principles of limited government, a system under which America made more progress in its first century than the world had made in the previous 5,000 years (hence the title of Skousen’s magnum opus, The Five Thousand Year Leap). But it all started falling apart at the start of the twentieth century, when progressives and socialists attacked the Constitution and Woodrow Wilson embraced their Satanic cause, taking the first fateful steps on the road to the serfdom we know today: minimum wages, a Federal Reserve, national parks, Medicare — all, Skousen insists, are unconstitutional.

All of this is nonsense, of course. But what is equally lamentable is that the recent rise (or, rather, return) to prominence of this constitutional crankery has spawned a whole genre of anxious liberal commentary aimed at rescuing the document’s honor from the clutches of uncouth reactionaries. It is an article of faith in this commentary that the Glenn Beck crowd simply misunderstand the Constitution and the intentions of the Founders. They labor under the illusion that our founding text enshrines conservative principles, when in reality (the claim goes) it’s an ambiguous document whose meaning is contested and always changing — or maybe even a warrant for ceaseless progress and change. But whatever it is, the Constitution according to today’s liberals is always misunderstood and never at fault, usually treated with a fond if wised-up reverence and never with the disapproving righteousness of the more advanced progressives. In a take-down of Tea Party constitutionalism, Dalia Lithwik in Slate writes that “the fact that the Constitution is sufficiently open-ended to infuriate all Americans almost equally is part of its enduring genius.” “It is an integrative force — the cornerstone of our civil religion,” writes Andrew Romano in Newsweek; but “the Tea Partiers belong to a different tradition — a tradition of divisive fundamentalism.” “The Constitution is ink on parchment,” writes Jill Lepore in a recent New Yorker piece (“The Battle Over the Constitution”), “it is 4400 words. And it is, too, the accreted set of meanings that have been made of those words, the amendments, the failed amendments, the struggles, the debates — the course of events — over more than two centuries. It is not easy, but it is everyone’s.” That sounds nice and awfully inclusive, but unfortunately the Constitution is much more than that: it is a charter for plutocracy.

It is a measure of our current ideological morass that liberals, in their own enlightened and open-minded way, still masochistically embrace a throne-and-altar orthodoxy that subordinates the people’s will to a virtually unalterable diktat handed down by an ancient council of aristocratic, semi-deified lawgivers. At this very moment, when expansionary monetary policy and debt relief for homeowners are demanded by the Left to address the ongoing, grinding social crisis, it should not be forgotten that “a rage for paper money” and “an abolition of debts” were precisely the sorts of “wicked project[s]” that James Madison, writing in Federalist No. 10, specifically hoped his Constitution would rule out.